Karnataka High Court
The Manager vs Smt. Aneesabanu on 31 July, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:30318
MFA No. 8624 of 2019
C/W MFA No. 7814 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 8624 OF 2019 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 7814 OF 2019(MV)
IN MFA 8624/2019
BETWEEN:
SMT ANEESABANU
W/O. RIZWAN AHAMED
AGED ABOUT 44 YEARS
R/O. NO.3, 922/A, 2ND CROSS
3RD FLOOR, NORTHERN BANGALORE
BANGALORE-560032
...APPELLANT
(BY SRI. SREENIVASAN M Y.,ADVOCATE)
AND:
Digitally signed by 1. ROYAL RODRIGUES
HEMALATHA A (L) VALERIAN RODRIGUES
Location: HIGH NO.2-78/5(9), FLAT NO.S-1
COURT OF
KARNATAKA CARMEL VIEW, MAROLI
KULSHEKAR, MANGALORE-575001.
2. THE MANAGER
THE ORIENTAL INSURANCE CO LTD.,
NEW MUSLIM HOSTEL COMPLEX
OPP FIRE BRIGADE, 1ST MAIN
SARASWATHIPURAM, MYSORE-570005
...RESPONDENTS
(BY SRI.H C VRUSHABENDRAIAH .,ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 01.04.2022)
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NC: 2024:KHC:30318
MFA No. 8624 of 2019
C/W MFA No. 7814 of 2019
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:29.04.2019,
PASSED IN MVC NO.190/2018, ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER, MACT,
SRIRANGAPATANA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA 7814/2019
BETWEEN:
THE MANAGER
THE ORIENTAL INSURANCE CO LTD.,
NEW MUSLIM HOSTEL COMPLEX
OPP FIRE BRIGADE, 1ST MAIN
SARASWATHIPURAM, MYSORE-570005
AND ALSO
THE ORIENTAL INSURANCE CO. LTD.,
44/45, RESIDENCY ROAD
LEO SHOPPING COMPLEX
BANGALORE-560 025.
BY ITS REGIONAL OFFICER
... APPELLANT
(BY SRI. H C VRUSHABENDRAIAH, ADVOCATE )
AND:
1. SMT ANEESABANU
W/O. RIZWAN AHAMED
AGED ABOUT 44 YEARS
R/O. NO.3, 922/A, 2ND CROSS
3RD FLOOR, NORTHERN BANGALORE
BANGALORE-560032.
2. ROYDEN RODRIGUES
(L) VALERIAN RODRIGUES
NO.2-78/5(9), FLAT NO.S-1
CARMEL VIEW, MAROLI
KULSHEKAR, MANGALORE-575001.
... RESPONDENTS
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NC: 2024:KHC:30318
MFA No. 8624 of 2019
C/W MFA No. 7814 of 2019
(BY SRI. SREENIVASAN M.Y, ADVOCATE FOR R1:
NOTICE TO R2 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINSTTHE JUDGMENT AND AWARD DATED: 29.04.2019
PASSED IN MVC NO. 190/2018 ON THE FILE OF THE PRL,.
SENIOR CIVIL JDUGE AND MEMBER MACT, SRIRANGAPATNA,
AWARDING COMPENSATION OF RS.13,72,000/- WITH
INTEREST AT 9% P.A FROM THE DATE OF PETITION TILL
DATE OF DEPOSIT.
THESE APPEALS, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
ORAL JUDGMENT
1. MFA No.8624/2019 is filed by the claimant and MFA No.7814/2019 is filed by the Insurance Company under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') being aggrieved by the judgment dated 29.04.2019 passed by the Senior Civil Judge & Member, MACT, Srirangapatana in MVC No.190/2018.
2. Facts giving rise to the filing of the appeals briefly stated are that on 31.12.2017 at about 08.30 a.m., the claimant was proceeding in Car bearing Registration No.KA-02-M-5490 and the said vehicle was driven by her -4- NC: 2024:KHC:30318 MFA No. 8624 of 2019 C/W MFA No. 7814 of 2019 husband in a slow and cautious manner and when they reached near Gananguru Village, at that time, the driver of the lorry bearing Registration No.KA-19-AA-8464 drover the same in a rash and negligent manner and suddenly taken the vehicle on the right side of the road and dashed to the claimant's car. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act, seeking compensation. It was pleaded that she spent significant amount towards medical expenses, conveyance charges and other related costs. It was further pleaded that the accident occurred solely on account of rash and negligent driving of the offending vehicle by its driver.
4. Upon service of notice, the respondent No.2 appeared through counsel and filed written statement denying the averments made in the claim petition. The -5- NC: 2024:KHC:30318 MFA No. 8624 of 2019 C/W MFA No. 7814 of 2019 respondent No.1, despite service of notice, did not appear before the Tribunal and was placed ex-parte.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter, recorded the evidence. The claimant, in order to prove the case, examined himself as PW-1 and another witness was examined as PW-2 and Dr.Vinayak and Dr.Girishchandra R were examined as CW-1 and CW-2, respectively, and got exhibited documents namely Ex.P1 to Ex.P12 and Ex.C1 to Ex.C18. On behalf of the respondents, one witness was examined as RW-1 and got exhibited a document namely Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.13,72,000/- along with interest at the rate of 9% p.a. and directed the Insurance Company to deposit the compensation amount along with -6- NC: 2024:KHC:30318 MFA No. 8624 of 2019 C/W MFA No. 7814 of 2019 interest. Being aggrieved, the present appeals have been filed.
6. The learned counsel for the claimant has raised the following contentions:
a) Firstly, the Tribunal erred in assuming the monthly income of the claimant as Rs.8,000/-, despite evidence showing she earned Rs.19,000/- per month by working as a Teacher.
b) Secondly, due to accidental injuries, the claimant suffered grievous injuries. The claimant has examined the doctors as CW-1 and CW-2. CW-1 is the Neuro Surgeon, in his evidence, he has stated that the claimant has suffered severe head injury and she has suffered disability of 62.5% to the whole body. On the other hand, CW-2, who is the Orthopedic Surgeon, has stated in his evidence that the claimant has suffered fracture of picondylar of tibial plateau and suffered disability of 40% to particular limb. But the Tribunal has taken the whole body disability at 53%, which is on the lower side.-7-
NC: 2024:KHC:30318 MFA No. 8624 of 2019 C/W MFA No. 7814 of 2019
c) Thirdly, due to the accident, the claimant has sustained grievous injuries. She was treated as inpatient for a period of 43 days. Considering the same, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are on the lower side.
d) Fourthly, due to the accidental injuries, the claimant suffered 40% disability to the particular limb and 62% to whole body disability. She has suffered severe head injury. Even after being discharged from the hospital, she was not in a position to discharge her regular work. She suffered a lot of pain during treatment. She has not been able to continue her job as a teacher. Therefore, the claimant is entitled to future prospects. In support of his contention, he has relied upon the judgment of the Hon'ble Apex Court in the case of PAPPU DEO YADAV vs. NARESH KUMAR AND OTHERS' 2020 SCC Online SC 752 and 'ERUDHAYA PRIYA vs. STATE EXPRESS TRANSPORT CORPORATION LTD. 2020' SCC Online SC 601.
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NC: 2024:KHC:30318 MFA No. 8624 of 2019 C/W MFA No. 7814 of 2019
e) Fifthly, the doctor, CW-2 in his evidence has deposed that the claimant needs one more surgery for removal of implant and cost of the said surgery is about Rs.1,00,000/-. But the compensation of Rs.25,000/- awarded by the Tribunal for 'future medical expenses' is on the lower side.
With the above contentions, learned counsel for the appellant sought to allow the appeal.
7. On the other hand, the learned counsel for the Insurance Company has raised the following counter- contentions:
a) Firstly, the assertion of claimant that she was earning Rs.19,000/- per month, remains unsubstantiated due to lack of documentary evidence. In the absence of proof of income, the Tribunal has assessed the income of the claimant notionally.
b) Secondly, even though CW-1 has stated that the claimant has suffered severe head injury and suffered -9- NC: 2024:KHC:30318 MFA No. 8624 of 2019 C/W MFA No. 7814 of 2019 62.5% disability to the whole body and CW-2 has stated in his evidence that the claimant has suffered fracture of picondylar of tibial plateau and suffered 40% disability to particular limb, the claimant nonetheless, appeared before the Court, entered the witness box, gave evidence, and satisfactorily answered all questions posed by the learned counsel for the Insurance Company. However, the Tribunal's assessment of whole body disability at 53% is on the higher side..
c) Thirdly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the overall compensation awarded by the Tribunal is on higher side.
d) Lastly, in light of the Division Bench decision of this Court in the case of Ms.Joyeeta Bose and others -v- Venkateshan.V and others (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the rate of interest awarded by the Tribunal at 9% p.a. on the compensation amount appears excessive.
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NC: 2024:KHC:30318 MFA No. 8624 of 2019 C/W MFA No. 7814 of 2019 With the above contentions, learned counsel for the Insurance Company sought to dismiss the appeal.
8. Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.
9. It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 31.12.2017 due to rash and negligent driving of the offending vehicle by its driver.
10. As per wound certificate, the claimant has sustained severe head injury and also sustained fracture of bicondylar of tibial plateau. CW-1 is the Neuro Surgeon, in his evidence, he has stated that the claimant has suffered severe head injury and suffered disability of 62.5% to the whole body. On the other hand, CW-2, who is the Orthopedic Surgeon, has stated in his evidence that the claimant has suffered fracture of picondylar of tibial plateau and 40% disability to particular limb. However, in
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NC: 2024:KHC:30318 MFA No. 8624 of 2019 C/W MFA No. 7814 of 2019 this case, the claimant herself filed the claim petition and testified as PW-1, answering all questions posed by the counsel for Insurance Company during cross-examination. The Tribunal also noted that PW-1 responded satisfactorily to the counsel's questions. Considering the finding given by the Tribunal, as well as the testimony of CW-1 and CW- 2 and the injuries documented in the wound certificate, I am of the opinion that the whole body disability is assessed at 40%.
11. The claimant alleges that she was earning a monthly income of Rs.19,000/- as a Teacher. However, due to the accident, she has been unable to continue her job, which will inevitably impact her future prospects. Therefore, in view of law laid down by the Hon'ble Apex Court in the case of PAPPU DEO YADAV vs. NARESH KUMAR AND OTHERS' 2020 SCC Online SC 752 and 'ERUDHAYA PRIYA, the claimant is entitled for future prospects. Since the claimant has not produced any documents to substantiate her claim, in view of guidelines issued by the
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NC: 2024:KHC:30318 MFA No. 8624 of 2019 C/W MFA No. 7814 of 2019 Karnataka State Legal Services Authority, for accidents occurred in the year 2017, notional income shall be taken at Rs.11,000/- p.m. In view of law laid down by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], an addition of 25% of the income towards 'future prospects' when the deceased was aged between 40 to 50 years. Thus the monthly income of the claimant is comes to Rs.13,750/-.
12. The claimant is aged about 43 years at the time of the accident and multiplier applicable to her age group is '14'. Thus, the claimant is entitled for compensation of Rs.9,24,000/- (Rs.13,750*12*14*40%) on account of 'loss of future income'.
13. The nature of injuries indicates that the claimant must have been under rest and treatment for a period of 4 months. Consequently, the claimant is entitled for
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NC: 2024:KHC:30318 MFA No. 8624 of 2019 C/W MFA No. 7814 of 2019 compensation of Rs.44,000/- (Rs.11,000*4 months) under the head 'loss of income during laid up period'.
14. Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He was hospitalized as an inpatient for more than 14 days in the hospital. Considering the prolonged pain during treatment as well as the permanent disability certified by the doctor, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'loss of amenities' from Rs.25,000/- to Rs.40,000/-.
15. Although the evidence of CW-2 suggests that the claimant requires approximately Rs.1.00,000/- for removal of implants, the claimant has not provided any supporting documents. Considering the nature of the injuries and the evidence of the doctor, the Tribunal has rightly awarded the compensation of Rs.25,000/- under the head of 'future medical expenses'.
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NC: 2024:KHC:30318 MFA No. 8624 of 2019 C/W MFA No. 7814 of 2019
16. Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.
17. Thus, the claimant is entitled to the following compensation:
As awarded As awarded
by the by this
Compensation under Tribunal Court
different Heads (Rs.) (Rs.)
Pain and sufferings 50,000 50,000
Medical expenses 5,14,000 5,14,000
Food, nourishment, 14,000 14,000
conveyance and
attendant charges
Loss of income during 32,000 44,000
laid up period
Loss of amenities 25,000 40,000
Loss of future income 7,12,000 9,24,000
Future medical expenses 25,000 25,000
Total 13,72,000 16,11,000
18. In the result, the following order is passed:
ORDER
a) The appeals are disposed of.
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NC: 2024:KHC:30318 MFA No. 8624 of 2019 C/W MFA No. 7814 of 2019
b) The judgment of the Claims Tribunal is modified.
c) The claimant is entitled to a total compensation of Rs.16,11,000/-.
d) Following the judgment of the Division Bench of this Court in the case of 'MS.JOYEETA BOSE' (supra), the interest awarded by the Tribunal at 8% per annum is scale down to 6% per annum.
e) The Insurance Company is directed to deposit the compensation amount along with interest from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.
f) The amount in deposit, if any, shall be transmitted to the concerned Tribunal.
Sd/-
(H.T. NARENDRA PRASAD) JUDGE HA List No.: 2 Sl No.: 26